Posted by: Patricia Salkin | January 26, 2016

CT Appellate Court Finds Grant of a Certificate of Zoning Compliance was a Discretionary Act, Thus Officer was Entitled to Absolute Immunity Under the Governmental Immunity Statute

On August 4, 2011, the City of Milford’s zoning enforcement officer issued a certificate of zoning compliance to the plaintiff Timothy T. Folsom’s neighbor to build a nonconforming structure on a vacant lot abutting the plaintiff’s property. The plaintiff appealed to the Board from the decision of the zoning enforcement officer. The Board held a public hearing in which the plaintiff argued that a merger between the vacant lot and the neighbor’s property prevented the issuance of the certificate of zoning compliance. The Board, finding that a merger had not occurred, upheld the issuance of the certificate of zoning compliance by the zoning enforcement officer to the plaintiff’s neighbor, and the plaintiff appealed to the Superior Court. While the plaintiff’s administrative appeal was still pending, the plaintiff commenced the present action in the Superior Court seeking reimbursement for costs incurred from litigating the administrative appeal plus interest. Specifically, the complaint alleged that officer was personally liable for negligently failing to enforce regulations and that board was liable for failing to disqualify itself due to a conflict of interest.

The plaintiff first argued that the zoning enforcement officer was not entitled to governmental immunity because the negligent enforcement of the regulations constituted a breach of a ministerial function to which governmental immunity did not apply. The court disagreed, finding that the power to enforce zoning regulations was and exercise of the officer’s judgment, and thus discretionary. Likewise, the Board’s alleged failure to identify a conflict of interest was an action that required the exercise of discretion, and therefore the Board was also entitled to governmental immunity. The plaintiff argued that an exception to governmental immunity applies where the action of a municipal Board, even if discretionary, violates a code of ethics. Here, the plaintiff directed his allegations against the Board as an entity, and not to any of its members individually. As a result, the court found he had not alleged a legally sufficient claim of personal interest in order to state a claim. The court therefore held that the Superior Court correctly granted the defendants’ motion to strike the complaint.

Folsom v Zoning Board of Appeals of the City of Milford, 160 Conn. App. 1 (CT App. 9/22/2015)

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